Q: When does an I-485 application become “pending” in the context of AC21's 180 day rule?
A: The meaning of "pending" had been a clear concept until the introduction of the concurrent filing of I-485 with I-140 in 2002.
Conventionally, the pending date of an I-485 is the Receipt Date of I-485 at CIS. That date is indicated on the Notice of Receipt sent by CIS. Theoretically, that date should be several days after your mailing date (the date you submit I-485) and several days before the date you receive CIS Notice of Receipt. In reality, however, there have been long spans among these dates, due to CIS front log problems. That is, depending on which service center your filing with, it always remains a possibility that you may have to wait months after submitting I-485 before you can be sure of the date on which your I-485 became “pending.” Typically, when you receive the notice of receipt from CIS, you may find your I-485 has become pending for quite sometime already.
With the introduction of the concurrent filing of I-485 with I-140, the exact date on which I-485 becomes pending suddenly became a crucial question because it critically determines when the applicant can start to enjoy the job portability provided by AC21. According to AC21, an applicant may change employer if his or her I-485 has been pending for 180 days or longer, as long as the new job is in the same or a similar occupational classification as the job in the original petition and ETA 750.
Specifically, the question created is this: If the I-485 is concurrently filed with I-140, does the 180 days start to accrue on the day the I-485 is filed or not until the day when the underlying I-140 is approved?
A literal reading of the AC21 statute seems clear that the 180 days starts to accrue on the date the I-485 is filed. Some CIS adjudicators, however, seem to assume that the 180 days does not start until I-140 is approved. This has generated a huge amount of confusion. At the same time, some people take an extreme view of AC21 and go as far as saying that not only does the 180 days starts to accrue as soon as I-485 is filed, but also that the180 day rule for portability applies even if the underlying I-140 is eventually denied.
We have always believed that neither the interpretation by some of the CIS adjudicators nor the extreme view of some others is correct. We believe the correct interpretation is that, on one hand, the underlying I-140 must be eventually approved for the portability rule to actually apply, but on the other hand, the 180 days starts on the date I-485 is filed rather than the date I-140 is approved.
As an illustration, consider the following scenario: The applicant concurrently files I-140 and I-485. If the I-140 is approved any time before 180 days after the filing, the applicant starts to enjoys portability 180 days after the filing (instead of 180 days after approval of I-140). If 180 days or longer have passed but the I-140 has not been approved, the applicant's I-485 has accrued the necessary 180 days, but in order for the applicant actually enjoy the portability, the underlying I-140 has to be eventually approved.
In addition to the above question, there has also been some confusion as to whether the CIS would still apply the 180 day rule in case where the employer revokes a previously approved I-140 petition (either because the employer is retaliatory due to the foreign worker's leaving, or the employer would like to make the approved labor certification available for a new I-140 for a different foreign worker by revoking and withdrawing the previous one). There have been reported occasions that some CIS adjudicators declined to apply the 180 day rule in such cases.
The above matters were at least partially settled by a CIS memo issued on August 11, 2003. According to the memo, the 180 days of AC21 start to accrue on the date an I-485 is filed regardless of whether the I-485 has been filed before or after the approval of the I-140. Furthermore, if the I-485 has been pending for longer than 180 days, a revocation by the employer, alone, will not make the I-140 and the I-485 invalid.
As of today (1-10-2004), the administrative regulation of the AC21 statute has not yet come out , over three years after the law has been enacted. The regulation would be an authoritative interpretation of the statute unless subsequently overruled by a court decision. Nevertheless, before the final regulation is released, we expect the adjudicators to follow the CIS memo